How Federal Agencies Use Delegated Rulemaking Authority

Federal agencies use delegated rulemaking authority by taking the general goals Congress writes into law and converting them into specific, binding regulations through a public procedure set out in the Administrative Procedure Act (APA). Congress hands agencies this power because it cannot legislate every industry detail itself, and the rules that come out the other end carry the force of law. Agencies then enforce those rules using tools that run from inspections to fines to license revocations, all under the eye of courts, Congress, and the White House.

Where the Authority Comes From

Agencies have no inherent power. Everything they do traces back to a specific congressional grant, contained in an enabling statute that creates the agency and defines its mission, structure, and regulatory scope.

The constitutional basis for this arrangement was settled in 1928 in J.W. Hampton, Jr. & Co. v. United States, which held that Congress can delegate decision-making authority as long as it provides an “intelligible principle” to guide the recipient’s discretion.¹ A statute telling an agency to “regulate the economy as you see fit” would fail that test. One directing it to “set emission standards for power plants that adequately protect public health with an ample margin of safety” passes.

The specific language of the enabling statute matters enormously. An agency acting outside the boundaries of its statute has exceeded its authority, and courts can strike those actions down.

How a Rule Gets Written

The standard procedure for creating a federal regulation is called notice-and-comment rulemaking, and it follows a predictable sequence laid out in the APA.² Before drafting anything, an agency typically evaluates the problem, researches alternatives, and sometimes publishes an advance notice of proposed rulemaking to test whether a rule is needed at all.³

When the agency decides to move forward, it publishes a Notice of Proposed Rulemaking (NPRM) in the Federal Register. The APA requires the NPRM to identify the legal authority behind the rule, describe the subjects and issues involved, and provide either the proposed text or a summary of its substance.² That publication opens a comment period, typically 60 days, though the length varies.³

Anyone can submit comments: individuals, businesses, trade groups, other government agencies. The agency must consider the relevant input it receives and then publish a final rule accompanied by a statement of its basis and purpose.² That final rule carries the force of law. An agency that ignores significant comments or fails to explain its reasoning leaves the rule vulnerable to being thrown out in court.

Rules That Skip Notice and Comment

Not every agency pronouncement runs through the full process, and this is where tracking regulatory activity gets harder.

The APA exempts interpretive rules, general policy statements, and rules about an agency’s internal organization or procedures.² An interpretive rule explains how the agency reads an existing statute or regulation without creating new legal obligations. A policy statement signals enforcement priorities without binding anyone. Neither carries the force of law the way a notice-and-comment rule does, but both carry real practical weight because they tell regulated parties what the agency is likely to do.

Agencies also issue guidance documents in many forms: advisories, manuals, FAQ sheets, compliance guides. The Administrative Conference of the United States has noted that these documents help agencies communicate how they interpret and plan to enforce their rules, but they sit outside the notice-and-comment framework.⁴ Distinguishing a guidance document that merely interprets existing law from one that effectively creates new obligations is one of the most contested questions in administrative law.

The APA also contains a good cause exception permitting binding rules without notice and comment when the standard process would be impracticable, unnecessary, or contrary to the public interest.² Agencies invoking it must explain their reasoning in the rule itself. Emergency health and safety measures are common examples, and stretched applications of the exception often draw legal challenges.

How the Public Can Push Back

The notice-and-comment system is built to let the public influence a rule before it becomes final, and agencies do change course in response to comments. Most agencies accept submissions through Regulations.gov, and some also take them by mail or email.³ Comments supported by data or concrete examples of operational impact tend to carry more weight than general objections.

You can also ask an agency to create, change, or repeal a rule on your own initiative. The APA gives interested persons the right to petition for the issuance, amendment, or repeal of a rule.⁵ The agency is not required to grant the petition, but it must respond. A denial issued without adequate explanation can itself be challenged in court.

How Agencies Enforce the Rules They Write

Writing rules is only half the job. Agencies also verify compliance, most visibly through inspections, audits, and record reviews. These activities generate the evidence that supports formal action when violations turn up.

When an agency identifies a violation, it can pursue enforcement through administrative adjudication, a quasi-judicial process in which the agency acts as a tribunal. The APA requires that parties receive notice of the charges, the legal basis for the hearing, and the facts at issue. An administrative law judge presides, and the APA prohibits that judge from being supervised by the agency’s investigators or prosecutors working the same case.⁶ That separation is meant to keep the agency from acting as prosecutor and judge in one breath.

Available penalties include civil fines, cease-and-desist orders, and revocation of licenses or permits needed to operate. Federal law requires agencies to adjust civil penalty amounts for inflation every year, so the dollar figures on the books tend to climb annually without any new legislation.⁷ For serious or repeated violations, agencies can refer cases to the Department of Justice for civil litigation or criminal prosecution, at which point the matter moves from the administrative system into federal court.

The Checks That Constrain Agencies

Judicial Review After Chevron

Federal courts are the most consequential check on agency rulemaking. Under the APA, final agency actions are subject to judicial review, and courts can set aside any action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”⁸ Courts also verify that the agency acted within the authority Congress actually gave it, rather than claiming powers its enabling statute does not support.⁹

For forty years, the central question in any challenge to a rule was how much deference courts owed the agency’s interpretation of an ambiguous statute. Under Chevron deference, from a 1984 Supreme Court case, courts had to accept an agency’s reasonable reading of unclear statutory text. That framework is gone. In June 2024, the Supreme Court overturned Chevron in Loper Bright Enterprises v. Raimondo, holding that courts must exercise their own independent judgment on whether an agency has acted within its statutory authority.¹⁰ Courts may still give “careful attention” to an agency’s expertise and reasoning, but they can no longer defer to an interpretation simply because a statute is ambiguous.

The Supreme Court reinforced this shift two years earlier in West Virginia v. EPA, which formalized the major questions doctrine. When an agency claims authority to regulate in a way that carries vast economic or political significance, the agency must point to clear congressional authorization; vague or general statutory language is not enough.¹¹ Together, these two decisions leave agencies with significantly less room to build ambitious regulatory programs on aggressive readings of older statutes.

Congress and the Congressional Review Act

Congress controls agency authority at the most fundamental level: it writes the enabling statutes, it can amend or repeal them at any time, and it funds agencies through annual appropriations. Committees also hold hearings and conduct investigations that put agency decisions under public scrutiny.

The Congressional Review Act (CRA) gives Congress a targeted tool for blocking individual rules. Before a rule can take effect, the issuing agency must submit a report to both chambers and the Comptroller General, including a copy of the rule, a statement of whether it qualifies as a “major rule,” and any cost-benefit analysis it prepared.¹² Congress can then pass a joint resolution of disapproval; if the President signs it or Congress overrides a veto, the rule is treated as though it never took effect.

A rule struck down under the CRA cannot be reissued in substantially the same form unless Congress specifically authorizes it in a later law.¹² That is a sharper consequence than a court vacating a rule, which usually leaves the agency free to try again with better reasoning. The CRA also contains a “lookback” provision that allows a new Congress to review, under expedited procedures, rules finalized late in an outgoing administration.¹³

White House Review Through OIRA

Before most significant regulations reach the Federal Register, they pass through a White House review. Under Executive Order 12866, issued in 1993, agencies must submit “significant regulatory actions” to the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget.¹⁴ A rule generally qualifies as significant if it could have an annual economic impact of $100 million or more, create conflicts with other agencies’ rules, alter budgetary impacts of entitlement programs, or raise novel legal or policy questions.

OIRA coordinates with other federal agencies to flag inconsistencies and confirms the issuing agency has produced a cost-benefit analysis showing that the regulation’s benefits justify its costs.¹⁵ Because OIRA sits within the Executive Office of the President, its review reflects administration priorities, and rules that conflict with those priorities can stall or be sent back for revision before the public ever sees them.

1
Constitution Annotated. Origin of Intelligible Principle Standard
2
Office of the Law Revision Counsel. 5 USC 553 – Rule Making
3
Regulations.gov. Learn About the Regulatory Process
4
Administrative Conference of the United States. Public Availability of Agency Guidance Documents
5
U.S. Environmental Protection Agency. Administrative Petitions for Rulemaking
6
Office of the Law Revision Counsel. 5 USC 554 – Adjudications
7
U.S. Department of Labor. Civil Money Penalty Inflation Adjustments
8
Office of the Law Revision Counsel. 5 USC 706 – Scope of Review
9
Office of the Law Revision Counsel. 5 USC 704 – Actions Reviewable
10
Supreme Court of the United States. Loper Bright Enterprises v. Raimondo (2024)
11
Supreme Court of the United States. West Virginia v. EPA (2022)
12
Office of the Law Revision Counsel. 5 USC 801 – Congressional Review
13
Congress.gov. Congressional Review Act Lookback Period
14
U.S. Environmental Protection Agency. Summary of Executive Order 12866 – Regulatory Planning and Review
15
The White House. About OIRA